As has already been noted on this blog (here and here) Professors Alan Boyle and James Crawford recently drafted an opinion on the international legal consequences of the Scottish referendum on independence. The Boyle/Crawford argumentation is very straightforward and, in my view, a conventional and uncontroversial account of the applicable international legal framework. However, I see one potential problem which was not (or could not) be considered in the Opinion drafted in December last year. In January 2013, Prime Minister Cameron announced another referendum; this one would be on the UK exiting the EU. Which UK would exit – the one with or the one without Scotland?

It is true that this referendum is not a legal reality at this stage and is merely a political pledge to be fulfilled should the Conservatives win at general elections. But with this possibility on the table, it is not entirely possible to separate the two referenda. Given the special nature of the EU, it is arguable that Scots now no longer know for what kind of an arrangement they are voting if they choose to stay in the UK. Or to put it differently, Scots do not know whether a vote for the UK is also vote to stay in the EU. And this may well be problematic under international law which requires that terms of a referendum on independence should be clear and unambiguous.

What if you are a Scottish voter who does not care about the UK but would vote against independence mainly (or only) because you do not want Scotland to be out of the EU and you do not want to lose your EU citizenship? How do you vote? If you support the UK, you might be out of the EU in the very near future anyway – because of the other referendum. What is more, if the UK eventually leaves the EU, it is quite likely that a vote for Scottish independence would have been a vote for the EU. Indeed, it is more likely that Scotland would join in due course than that the UK, if it left, would re-enter any time soon. So, if you are a Scottish voter and motivated by Scotland staying in the EU; how should you vote in 2014? Assuming you are not a fortune teller and cannot predict what would happen in 2017, you do not know. In 2014, Scots might be asked to go off the deep end without being assured that there is water in the pool. This is precisely what the clarity standards regarding independence referenda try to prevent.

The international requirement for clarity of the referendum question

There are no universally-prescribed procedural rules for independence referenda. However, the minimum international standard that has emerged seems to be the following: both the referendum question and the winning majority need to be clear and unambiguous. I elaborate on this more thoroughly in my new book ‘Democratic Statehood in International Law’. Let me just summarise here that the concept of clarity and unambiguity in the independence referenda context is situation-specific and is determined by social and political factors. It is not universally qualified or even quantified. The referenda rules often prescribe a mere majority of all votes cast at a turnout of at least fifty per cent of all those eligible to vote. Yet sometimes much more demanding and also uniquely qualified majorities may be prescribed.

As far as the clarity of the question is concerned, the question should not ask about independence implicitly or obscure the fact that as a consequence of the vote the legal status of the territory could be altered. For example, Scotland’s question would not meet the standard if it contained the possibility of a subsequently reorganised union with the rump UK (e.g. monetary union, customs union, etc).

Textually, the Scottish referendum question is quite exemplary in being straightforward: ‘Should Scotland be an independent country? Yes/No.’ Fair enough; the clarity test met. But only if we focus narrowly on the wording of the question and disregard certain political and social factors, such as the fact that now the other referendum is looming large as well. With the other referendum also in the equation, the Scottish referendum becomes a dependent variable on the EU issues and thus we get a lack of clarity, that is, an impermissible ambiguity.

True, if the Scottish referendum question specified that Scotland would seek to join the EU, or even promised EU membership, this would have been a misleading question on independence and, as such, it would probably fall below the clarity threshold. But with the other referendum in sight, Scots do not know whether or not a vote for the UK is also a vote to stay in the EU.

The problem is not merely hypothetical as recent opinion polls show that 53 per cent of Scots would vote for the UK to stay in the EU, ‘only’ 34 per cent would vote for the UK to exit and 61 per cent think that an independent Scotland should seek to join the EU. Things are quite different in England where 50 per cent would prefer the UK to exit and ‘only’ 42 per cent are expressly in favour of staying. So EU membership may be an important consideration not only at the ‘specialised’ referendum but will also be in the background of the decision-making in Scottish voting booths in 2014.

‘Secession’ from the EU

One could challenge the argument I just set out on the basis that Scotland would be seceding from the UK, not the EU. So what matters is only the clarity of the question on secession from the UK. But as Boyle and Crawford convincingly show, by exiting the UK, Scotland is effectively also exiting the EU. It is possible that in the transitional period Scotland would negotiate an entry into the EU at the time of the declaration of independence but this is only a possibility and not a legally predetermined outcome. Thus, under the presently-applicable legal framework, when Scots vote for an independent Scotland they ipso facto also vote for a Scotland outside of the EU. Strictly speaking, since the EU is not a state, we cannot say that they are voting for ‘secession’ from the EU. However, this exercise effectively falls very close to it.

In my view, it is overstretching to claim that Scots (those who would not retain UK citizenship after independence) would automatically retain EU citizenship even in the period when Scotland is not in the EU (though creative separate agreements to the same effect may well be concluded in the period of transition). But the Boyle/Crawford excursion into this argument is nevertheless instructive in light of the new problem that Scotland might be severed from the EU in any case.

The EU is indeed not merely an international treaty regime. As the ECJ held already in Van Gend en Loos, quoted also by Boyle and Crawford, (what is now) the EU “constitutes a new legal order of international law for the benefit of which the States have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals.”

The EU is therefore a legal order which crucially determines the legal parameters of Scotland, the extent of Scottish sovereignty, its economic development, and the daily lives of its citizens, within Scotland itself and also when they travel abroad. Before they make a decision on independence, Scots have a right to know whether or not they would sever themselves from this complex legal order which very much determines in what kind of an arrangement they would live, by which laws they would be governed and whether they would have access to the common European market.

The Boyle/Crawford Opinion demonstrates that by voting in favour of independence, Scots would, at least prima facie, sever themselves from rights and duties arising under EU law. But with the prospect of the UK’s referendum on exiting the EU, the issue becomes much more complex. Staying in the UK may not keep them in the EU, either. What is more, it may well be that in case the UK leaves the EU, the pro-EU vote would have been a vote for independent Scotland. But Scots will not know that when they need to cast votes in 2014.

Conclusion

The clarity standards with regard to independence referenda are not universally qualified and are context specific. The context of the likelihood of an EU referendum in the UK, arguably, pushes the Scottish independence referendum below the international minimum threshold of clarity. Which option is now more likely to keep Scotland in the EU? If there was no UK-wide referendum in sight on exiting the EU, the answer would have been obvious. Now it is not. Yet the EU legal order is such an important factor here that no such ambiguity should exist. Because of the nature and complexity of the EU, the UK in the EU is a much different legal arrangement than the UK outside of the EU.

To be sure, I am not trying to say that because of the Scottish referendum the UK may never be allowed to exit the EU. The problem is rather that the processes are running virtually in parallel and create a complicated EU-UK-Scotland triangle. For the sake of clarity, the correct way would be for the UK to first resolve its own legal status – in or out of the EU. And only then Scots would know in which pool they are jumping. A caveat applies that the EU referendum is merely a political pledge at the moment and depends on another variable – general elections.

On the political side, if the opinion polls started to indicate clearly that the UK would exit, this could motivate some Scots to vote for independence – they are losing EU citizenship in any case and in an independent Scotland their prospects of getting it back may indeed be much better than in a freshly exited UK. This is not a problem of international law but it may become a problem of those who would like to keep Scotland within the UK and, at the same time, take the UK out of the EU.